In trademark infringement cases, sometimes it is necessary to first determine whether the goods or services are identical or similar. Regarding this issue, there is still controversy in the academic community, but most scholars believe that the determination of whether the goods or services are the same or similar should be a matter of legal application, but it contains factual issues, such as the function, purpose, production department, and sales channel of the goods. , sales objects, etc.; services in terms of purpose, content, method, objects, etc. Therefore, forensic identification can only identify factual issues, and there is a "boundary" issue in the middle. Forensic identification cannot exceed its limited scope.

1. Definition of similar goods or services

Similar goods refer to goods that are identical in terms of functions, uses, main raw materials, production departments, sales channels, sales places, consumer objects, etc. or similar. According to the "Classification Table of Similar Goods and Services", it means that there is a certain degree of similarity in functions, uses, raw materials used, sales channels, consumer objects, etc. If the same or similar trademarks are used, it is easy for the relevant public to think that they are similar. There is a specific connection that causes consumers to mistakenly think that the goods are produced by the same company.

Similar services refer to services that are the same or similar in terms of purpose, content, method, objects, etc. According to the "Table of Distinguishing Similar Goods and Services", it means that there is a certain degree of similarity in the purpose, content, method, object, etc. of the service. If the same or similar trademark is used, it is easy for the relevant public to think that there is a specific connection. , causing consumers to mistakenly think that they are services provided by the same company.

2. Main factors for determining similar goods

1. Functions and uses of the goods

If the functions and uses of two goods are the same or similar, they can satisfy consumption If the goods have the same needs, they are more likely to be judged as similar goods.

If two goods are complementary in function and use or need to be used together to meet consumer needs, they are more likely to be judged as similar goods.

2. Raw materials and ingredients of the product

The raw materials or ingredients of the product are important factors that determine the function and use of the product. Generally speaking, if the raw materials or ingredients of two goods are the same or similar, they are more likely to be judged as similar goods.

However, with the upgrading of goods, even if the raw materials or ingredients of the goods are different, but the raw materials or ingredients are substitutable and do not affect the function and use of the goods, they will still be judged as similar goods. possibility.

3. Sales channels and sales places of the goods

If the sales channels and sales places of two goods are the same or similar, there is a greater chance that consumers will come into contact with each other at the same time, which will easily make consumers If the two are connected, it is more likely to be judged as similar goods.

4. Goods and parts

Many goods are composed of various parts, but it cannot be automatically considered that the product and each part or each part are similar goods. , the judgment should still be based on consumers' usual perception of the closeness of the connection between the two.

If the purpose of specific parts is to match the function of a specific product, and the product lacks the specific parts, it cannot realize its function or seriously impairs its economic purpose, it will be judged as Similar products are more likely.

5. Producers and consumers of goods

The more likely it is that two goods are produced, manufactured, and processed by producers in the same industry or field, the more likely they are to be judged to be similar. The greater the possibility of the product.

If two goods have people engaged in the same industry as the consumer group, or their consumer groups have the same characteristics, they are more likely to be judged as similar goods.

6. Consumption habits

The determination of similar goods should also consider the consumption habits formed by consumers in a specific social and cultural background, that is, the cognitive level of the relevant public should be considered and market transaction conditions. If consumers can habitually substitute two goods for each other, the two goods are more likely to be judged as similar goods.

3. Main factors for determining similar services

1. Purpose of service

Two services have the same or similar purpose and may be substitutes for each other. Those that meet the same or similar needs of general service recipients are more likely to be judged as similar services.

2. Content of the service

The closer the content of the service provided, the more likely it is to be judged as a similar service.

3. Service method and service place

If the service method or service place is the same, and the general service recipients have a greater chance of being contacted at the same time, it is more likely to be judged as similar services. big.

4. Scope of service objects

If the recipients of the service come from the same or similar consumer groups, it is more likely to be judged as similar services.

5. Service providers

If the service providers come from the same industry or field, they are more likely to be judged as similar services.

It can be seen that judicial appraisal cannot directly determine whether the goods or services are the same or similar. This is a legal issue. However, the main factors can be compared one by one to obtain the comparison results of each factor separately.